Reform of the Foreign Intelligence
Surveillance Court (FISC): Selection of Judges
Vivian S. Chu
Legislative Attorney
May 7, 2014
Congressional Research Service
7-5700
www.crs.gov
R43534
Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
Summary
In the past year, the decisions and functions of the courts established under the Foreign
Intelligence Surveillance Act (FISA) have received much public attention. FISA established two
courts—the Foreign Intelligence Surveillance Court (FISC) and the FISA Court of Review—
which have jurisdiction to review government applications to conduct electronic surveillance for
foreign intelligence purposes. Various proposals have been introduced in Congress to amend the
law that authorizes such surveillance and to change the internal practices and procedures of the
courts. This report focuses on those proposals that would amend the process for selecting the
judges who serve on the FISC and FISA Court of Review.
Under the existing framework, the Chief Justice of the U.S. Supreme Court “designates” existing
federal judges to serve on the FISA courts. While critics have argued that the current process is
partisan and lacks political accountability, transparency, and oversight, the Director of the
Administrative Office of the U.S. Courts, acting on behalf of the Chief Justice of the Supreme
Court, has expressed concern regarding proposals that would change the existing framework.
Proposals that would alter the process for selecting FISA judges include S. 1460, the FISA Judge
Selection Reform Act, which would effectively shift authority to the chief judges of the circuit
courts; H.R. 2761, the Presidential Appointment of FISA Court Judges Act, which would
authorize the President to choose FISA judges with the advice and consent of the Senate; and
H.R. 2586, the FISA Court Accountability Act, which would permit Members of Congress to
select FISA judges.
To understand the potential legal issues implicated by these proposals, this report first briefly
reviews the constitutional method for appointing federal judges. The report also surveys the
process of “designation,” an alternative method used by Congress that allows current federal
judges to serve temporarily on another federal court without undergoing a separate constitutional
appointment. Lastly, the report explores how a reviewing court might evaluate the
constitutionality of these proposals that would shift the authority to select FISA judges away from
the Chief Justice alone, and vest it in other officials within the judicial, executive, and legislative
branches.
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Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
Contents
Introduction ...................................................................................................................................... 1
Overview of FISA Courts and Selection of FISA Judges ................................................................ 1
Constitutional Appointment or Designation of Article III Judges ................................................... 3
Proposals to Alter the Selecting Authority of FISA Judges ............................................................. 6
Contacts
Author Contact Information........................................................................................................... 10
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Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
Introduction
In 1978, Congress enacted the Foreign Intelligence Surveillance Act (FISA) after conducting
sweeping investigations into perceived electronic surveillance abuses by the executive branch.1
Among other things, FISA established the Foreign Intelligence Surveillance Court (FISC), which
reviews government applications to conduct electronic surveillance for foreign intelligence
purposes.2 In the wake of revelations from June 2013 concerning the scope of orders issued by
the FISC, many have questioned the current mechanism for reviewing the executive branch’s
intelligence gathering practices.3 Members of Congress have introduced various proposals that
would amend FISA or amend the practices and procedures of the FISC. This report focuses on the
proposals that would alter the process for selecting judges to serve on the FISA courts.4
Overview of FISA Courts and Selection
of FISA Judges
Article III of the U.S. Constitution vests the “judicial power” of the United States in the Supreme
Court and any inferior courts established by Congress.5 Judicial power entails a power to render
final, “dispositive judgments” in particular cases and controversies.6 Federal judges, who preside
over Article III courts, enjoy life tenure so long as they are in “good behaviour.”7 Moreover, their
salaries cannot be diminished during their terms in office.8 The purpose of these provisions is to
ensure that federal courts operate free from interference from the political branches in order to, in
the words of Alexander Hamilton, “secure a steady, upright, and impartial administration of the
laws.”9
1 See Foreign Intelligence Surveillance Act of 1978, P.L. 95-511, 92 Stat. 1783 (1978); see generally Foreign
Intelligence Surveillance Act of 1977, Hearings on S. 1566 Before the Subcomm. on Criminal Law and Procedures of
the S. Comm. on the Judiciary, 95th Cong. (1977); Foreign Intelligence Surveillance Act of 1978: Hearings on S. 1566
Before the Subcomm. on Intelligence and the Rights of Americans of the S. Select Comm. on Intelligence, 95th Cong.
(1978); Foreign Intelligence Surveillance Act of 1976, S.Rept. 94-1035 (1976); Foreign Intelligence Surveillance Act
of 1978, H.Rept. 95-1283 (1978).
2 See 50 U.S.C. §§1801-1881g.
3 See, e.g., Jonathan Weisman, As Criticism Grows, Curtailing Surveillance Program Seems Unlikely, N.Y. TIMES
ONLINE, June 8, 2013; Jennifer Stisa Granick and Christopher Jon Sprigman, The Criminal N.S.A., N.Y. TIMES OP-ED,
June 27, 2013; Eric Lichtblau, In Secret, Court Vastly Broadens Powers of N.S.A., N.Y. TIMES, July 7, 2013, at A1.
4 For a discussion of other proposals that would amend FISA, such as introducing a public advocate into the FISA
courts’ adjudicatory process, see CRS Report R43260, Reform of the Foreign Intelligence Surveillance Courts:
Introducing a Public Advocate, by Andrew Nolan, Richard M. Thompson II, and Vivian S. Chu; see also CRS Report
R43134, NSA Surveillance Leaks: Background and Issues for Congress, by Catherine A. Theohary and Edward C. Liu.
5 U.S. Const., art. III, §1.
6 See Plaut v. Spendthrift Farm, 514 U.S. 211, 219 (1995) (quoting Frank Easterbrook, Presidential Review, 40 Case
W. Res. L. Rev. 905, 926 (1990)).
7 The Constitution provides that “all civil Officers of the United States,” which includes federal judges, “shall be
removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and
Misdemeanors.” U.S. Const., art. II, §4.
8 U.S. Const., art. III, §1.
9 The Federalist No. 78; see also N. Pipeline Const. Co. v. Marathon Pipeline Co., 458 U.S. 50, 60 (1982) (“[O]ur
Constitution unambiguously enunciates a fundamental principle—that the ‘judicial Power of the United States’ must be
reposed in an independent judiciary. It commands that the independence of the Judiciary be jealously guarded, and it
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Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
In FISA, Congress established the FISC, an Article III court.10 Overall, the FISC is authorized to
issue orders related to foreign intelligence investigations. Upon a proper showing made in an
application by a federal officer, the FISC may issue an order approving electronic surveillance,
certain physical searches, the use of a pen register or a trap and trace device, or access to certain
business records.11 FISA also established the FISA Court of Review, which has jurisdiction to
review the denial of any application by the FISC.12
FISA authorizes the Chief Justice of the U.S. Supreme Court to “designate” the federal judges to
serve on the FISC and FISA Court of Review.13 Judges of both courts serve seven-year terms and
are not eligible for a second term.14 The FISC is currently composed of 11 district court judges
who must be selected from at least seven of the regional judicial circuits, with one of the eleven
serving as the presiding judge.15 The FISA Court of Review is composed of three judges who may
be selected from either the district courts or circuit courts of appeal, with one serving as the
presiding judge.16
Some have argued that the authority to select judges should not reside solely with one unelected
official, that is, the Chief Justice of the Supreme Court, and others have commented that the
process is too partisan.17 With these criticisms in mind, several bills have been introduced in the
113th Congress to alter the process for selecting FISA judges. Proposals to alter the selection
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provides clear institutional protections for that independence.”). For further discussion on Article III courts and
Congress’s ability to regulate them, see CRS Report R43362, Reform of the Foreign Intelligence Surveillance Courts:
Procedural and Operational Changes, by Andrew Nolan and Richard M. Thompson II, at 6-9.
10 See United States v. Cavanagh, 807 F.2d 787, 791 (9th Cir. 1987) (Kennedy, J.) (“[Appellant] ... appears to suggest
that the FISA court is not properly constituted under [A]rticle III because the statute does not provide for life tenure on
the FISA court. This argument has been raised in a number of cases and has been rejected by the courts. We reject it as
well.”); In re Kevork, 634 F. Supp. 1002, 1014 (C.D. Cal. 1985) (“The FISA court is wholly composed of United States
District Court judges, who have been appointed for life by the President, with the advice and consent of the Senate, and
whose salaries cannot be reduced. The defendants’ contentions that because of their limited term on the FISA court,
these judges lose their Article III status, has no merit.”); United States v. Megahey, 553 F. Supp. 1180, 1197 (E.D.N.Y.
1180) (same); United States v. Falvey, 540 F. Supp. 1306, 1313 n.16 (E.D.N.Y. 1982) (same); cf. In re Sealed Case,
310 F.3d 717, 732 n.19 (FISA Ct. 2002) (“In light of Morrison v. Olson and Mistretta v. United States, we do not think
there is much left to an argument made by an opponent of FISA in 1978 that the statutory responsibilities of the FISA
court are inconsistent with Article III case and controversy responsibilities of federal judges because of the secret, non-
adversary process.”).
11 See 50 U.S.C. §1804 (electronic surveillances); 50 U.S.C. §1824 (physical searches); 50 U.S.C. §1843 (pen register
or trap and trace devices); 50 U.S.C. §1861 (business records).
12 50 U.S.C. §1803. For more discussion on the operation of FISA courts, see CRS Report R43362, Reform of the
Foreign Intelligence Surveillance Courts: Procedural and Operational Changes, by Andrew Nolan and Richard M.
Thompson II at 4-5.
13 50 U.S.C. §1803(a), (b).
14 50 U.S.C. §1803(d).
15 50 U.S.C. §§1803(a)(1), (e). No fewer than three of the designated FISC judges must reside within 20 miles of the
District of Columbia. Id. There are 13 judicial circuits. 28 U.S.C. §41.
16 50 U.S.C. §1803(d).
17 See, e.g., Ezra Klein, Chief Justice Roberts Is Awesome Power Behind FISA Court, BLOOMBERG OPINION, July 2,
2013, available at http://www.bloomberg.com/news/2013-07-02/chief-justice-roberts-is-awesome-power-behind-fisa-
court.html; Linda Greenhouse, Too Much Work?, NY TIMES ONLINE, August 7, 2013, available at
http://opinionator.blogs.nytimes.com/2013/08/07/too-much-work/?_php=true&_type=blogs&_r=0; Garrett Epps, Chief
Justice Roberts Appointed Every Judge on the FISA Court: Is that Too Much Power for One Person?, NATIONAL
JOURNAL, August 12, 2013, available at http://www.nationaljournal.com/nationalsecurity/chief-justice-john-roberts-
appointed-every-judge-on-the-fisa-court-20130812.
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Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
method include one that would effectively transfer selection authority to the chief judges of the
circuit courts, as the bill would require the Chief Justice to designate judges who are
recommended by the chief judges.18 Another bill would authorize the President to choose FISA
judges with Senate advice and consent,19 while another proposal would place this authority with
congressional leadership.20 The principal issue that may be raised by these proposals is whether
designation by a certain branch of government would be constitutionally permissible. Notably, the
judicial branch issued comments in January 2014 and expressed concern with proposals to shift
selection of FISA judges away from the Chief Justice.21
This report first briefly reviews the constitutional method for appointing Article III judges. It then
surveys the process of “designation,” an alternative method used by Congress that allows current
federal judges to serve temporarily on another federal court without undergoing a separate
constitutional appointment. Lastly, the report explores how a reviewing court might assess the
constitutionality of some of these proposals that shift designation authority away from the Chief
Justice alone and vest it in other officials within the judicial, executive, and legislative branches.
Constitutional Appointment or Designation
of Article III Judges
The Appointments Clause of the U.S. Constitution prescribes the manner in which certain
government officials must be appointed.22 Principal officers, such as “Judges of the supreme
Court,” must be appointed by the President with the advice and consent of the Senate.23 The
Supreme Court has also indicated that all other “Article III circuit and district judges ... are
principal officers.”24 Accordingly, the initial appointment of an Article III judge generally must
18 FISA Judge Selection Reform Act of 2013, S. 1460, 113th Cong. (1st Sess. 2013).
19 Presidential Appointment of FISA Court Judges Act, H.R. 2761, 113th Cong. (1st Sess. 2013).
20 FISA Court Accountability Act, H.R. 2586, 113th Cong. (1st Sess. 2013).
21 The Chief Justice of the U.S. Supreme Court asked the Director of the Administrative Office of the U.S. Courts to act
as a liaison for the judicial branch on matters concerning FISA. On January 13, 2014, the Director issued a letter and
accompanying memoranda with comments conveying the concerns of the judiciary regarding certain proposals to
amend FISA and proceedings before the FISC and FISA Court of Review. See Administrative Office of the U.S.
Courts, Comments of the Judiciary on Proposals Regarding the Foreign Intelligence Surveillance Act, at 12-13
(January 13, 2014), available at http://www.feinstein.senate.gov/public/index.cfm/2014/1/former-fisa-court-judge-
outlines-views-on-fisa-reform. See infra note 51.
22 U.S. Const., art. II, §2, cl. 2. The President “shall nominate, by and with the Advice and Consent of the Senate, shall
appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the
United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law... .”
23 U.S. Const., art. II, §2, cl. 2. “The prescribed manner of appointment for principal officers is also the default manner
of appointment for inferior officers. ‘[B]ut,’ the Appointments Clause continues, ‘the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments.’” Edmond v. United States, 520 U.S. 651, 660 (1997) (citing U.S. Const., art. II, §2, cl. 2).
24 Weiss v. United States, 510 U.S. 163, 191 n.7 (1994) (Souter, J., concurring). In Weiss, Justice Souter argued that the
Court’s decision in Freytag v. Commissioner, 501 U.S. 868, 884 (1991), implicitly accepted that all lower federal court
judges, and not solely the Supreme Court justices, should be considered principal officers. In Freytag, the Court had
replaced the phrase “judges of the supreme Court” with “judges” when describing the category of individuals who are
principal officers under the Appointments Clause. But see Theodore W. Ruger, The Judicial Appointment Power of the
Chief Justice, 7 U. PA. J. CONST. L. 341, 369 (2004) (noting that the excepting clause of the Appointments Clause could
provide some textual support for the Chief Justice to “appoint” judges to other federal courts if judges are treated as
“inferior officers,” in which case their appointment may be vested “in the President alone, in the Courts of Law, or in
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adhere to the strictures of the Appointments Clause because he is a principal officer exercising
“significant authority pursuant to the laws of the United States.”25
However, if Congress subsequently expands the duties of an office for which one must be
constitutionally appointed, the Court has concluded that it may not be necessary for an incumbent
to receive a second appointment, if the additional duties are germane to the official’s original
government post.26 For instance, in Weiss v. United States, the Supreme Court held that military
officers, who must be appointed by the President with the advice and consent of the Senate, could
be designated to serve on a military court without a second constitutional appointment.27 Guided
by the principle of “germaneness” established in Shoemaker v. United States,28 the Weiss Court
reiterated “[i]t cannot be doubted ... that Congress may increase the power and duties of an
existing office without thereby rendering it necessary that the incumbent should again be
nominated and appointed.”29 Based on this precedent, it appears there is generally no violation of
the Appointments Clause when Congress permits the designation of an existing federal judge to
serve in a separate position in a related Article III capacity.
The Supreme Court also has had occasion to specifically address the constitutionality of the
designation process within the judicial branch. Notably, Congress has long employed
designations for Article III courts and has vested the Chief Justice with authority to temporarily
assign federal judges to serve on other federal courts, including specialized tribunals.30 The
creation of the now-defunct Commerce Court is one of the earliest instances where Congress
vested the Chief Justice with authority to designate federal judges to a special tribunal.31 The first
set of judges to this court was appointed by the President with the advice and consent of the
Senate, and subsequent judges were “designated” by the Chief Justice from among the judges of
the circuit courts.32 The Commerce Court’s Chief Justice-based designation process became a
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the Heads of Departments”).
25 Buckley v. Valeo, 424 U.S.1, 126 (1976). In Edmond the Court stated that the exercise of “significant authority” does
not mark the line between principal and inferior officer, but observed that that “‘inferior officer[s]’ are officers whose
work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice
and consent of the Senate.” Edmond, 520 U.S. at 663.
26 See Weiss v. United States, 510 U.S. 163 (1994); Shoemaker v. United States, 147 U.S. 282 (1893).
27 Weiss, 510 U.S. at 175-6 (declaring “the role of military judge is ‘germane’ to that of military officer” such that “the
Appointments Clause by its own force does not require a second appointment before [a] military officer[] discharge[s]
the duties of a military judge”). The Court reasoned that those designated to be a military judge “have no more
authority than any other military officer” until assigned to a specific military court. Id. at 175 (citing Weiss v. United
States, 36 M.J. 224, 228 (C.M.A. 1992)).
28 Shoemaker, 147 U.S. at 301 (concluding it was not necessary for two members of a newly established commission to
receive a separate appointment simply because “additional duties, germane to the offices already held by them, were
devolved upon them by the act”).
29 Weiss, 510 U.S. at 174 (citing Shoemaker, 147 U.S. at 301).
30 The Chief Justice’s authority dates back to the 19th century. See, e.g., Act of July 29, 1850, ch. 30, 9 Stat. 442
(amended 10 Stat. 5 (1852) (authorizing circuit judge and the Chief Justice of the Supreme Court to “designate and
appoint” a district judge from the same or an adjoining circuit to serve in the place of the disabled judge, or as later
amended, for reasons of accumulation or urgency of judicial business)). An earlier statute had conferred a similar form
of designation authority on circuit courts. See Judiciary Act of 1801, ch. 4, §25, 2 Stat. 89, 97 (repealed 1802). The
Chief Justice’s authority currently includes, for example, designating circuit court judges to serve temporarily in other
circuit courts and designating district court judges to serve temporarily in other district and circuit courts. 28 U.S.C.
§291(a), §292(d).
31 36 Stat. 539 (1910). See also Ruger, supra note 24, at 347.
32 36 Stat. 539, 540. Some Members of Congress expressed concern about leaving “the designation of the members of
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model for future specialized courts, many of which operated for numerous years, or are still in
existence, such as the FISA courts.33 Congress has also vested lower federal court judges with
designation authority as well.34
Where the Supreme Court has reviewed designations within the judicial branch, it has upheld
them. In McDowell v. United States, for example, the Court stated that the resolution of whether a
circuit court judge validly designated a district court judge “presents a mere matter of statutory
construction, for the power of Congress to provide that one District Judge may temporarily
discharge the duties of that office in another district cannot be doubted.”35 No constitutional
questions were addressed in McDowell because the designation process “involves no trespass
upon the executive power of appointment. … District Courts are solely the creation of statute, and
the place in which a judge thereof may exercise jurisdiction is absolutely to the control of
Congress.”36 The Court in Lamar v. United States similarly dismissed a constitutional challenge to
the Chief Justice’s designation authority with respect to district court judges.37 In a one-sentence
analysis, the Court rejected the defendant’s argument that the designation violated the
Appointments Clause and declared “merely to state [such argument] suffices to demonstrate its
absolute unsoundness.”38
The few courts that have addressed the designation of FISA judges also have upheld the
constitutionality of this process. In United States v. Cavanagh, the U.S. Court of Appeals for the
Ninth Circuit (Ninth Circuit) rejected an argument that the FISC violates the Appointments
Clause because judges are designated by the Chief Justice rather than appointed by the President
with Senate confirmation.39 The Ninth Circuit believed this argument was foreclosed by Lamar v.
United States, which had upheld the temporary assignment of district court judges by the Chief
Justice. The court stated that there was “substantial precedent for the temporary assignment of
lower federal judges by the Chief Justice to serve on specialized courts.”40 Similarly, district
courts, in upholding the FISA designation process, have noted that FISA judges, though term
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the [Commerce Court] in the hands of one man, the Chief Justice of the Supreme Court,” but this view did not prevail.
45 Cong. Rec. 7347 (1910) (statement of Sen. LaFollette).
33 See, e.g., the Emergency Court of Appeals (56 Stat. 23 (1942)) (operated from 1942 to 1961, see Order of Chief
Justice Albert B. Maris, 299 F.2d 1, 20 (1961)); the Temporary Emergency Court of Appeals (85 Stat. 743, 748 (1971))
(operated from 1971 to 1992, see P.L. 105-572 (1992)); the Judicial Panel on Multidistrict Litigation (82 Stat. 109
(1968)); the Special Division of the District of Columbia Circuit (92 Stat. 1824, 1873 (1978)); the Alien Terrorist
Removal Court (8 U.S.C. §1532).
34 See, e.g., 28 U.S.C. §291(b) (chief judges of circuit courts can assign other circuit judges to sit on district courts
within the circuit); 28 U.S.C. §292(a)-(b) (chief judges of circuit courts may move district court judges up to the
appeals court within the circuit, or move court judges to any other district court within the circuit).
35 McDowell v. United States, 159 U.S. 596, 598 (1895) (referencing 16 Stat. 494 (1871)).
36 Id. at 598-99.
37 Lamar v. United States, 241 U.S. 103 (1916) (referencing 38 Stat. 203 (1913)). See also see also Donegan v. Dyson,
269 U.S. 49, 54 (1925) (resolving authority of the Chief Justice to make a designation of a former Commerce Court
judge based on statutory interpretation of Judicial Code as amended (42 Stat. 837 (1922)). Similarly, in United States v.
Claiborne, 870 F.2d 1463, 1468 (9th Cir. 1989), the court dismissed a challenge to the Chief Justice’s authority to
designate district court judges to sit on district courts in a different circuit based on a statutory interpretation of 28
U.S.C. §§46(b), 291(a).
38 Lamar, 241 U.S. at 118.
39 United States v. Cavanagh, 807 F.2d 787, 792 (9th Cir. 1987).
40 Id.
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Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
limited, are not distinguishable from other federal judges who are designated to temporarily serve
on other courts.41
Proposals to Alter the Selecting Authority
of FISA Judges
As mentioned above, the central issue that may be raised by the various proposals that seek to
alter who selects FISA judges is whether designation by certain individuals within the different
branches of government would be constitutionally permissible. The FISA Judge Selection Reform
Act (S. 1460), for example, would maintain designation authority within the judicial branch, but it
would disperse the selection process for the FISC between the 13 chief judges of the circuit courts
and the Chief Justice.42 Under the proposal, the number of FISC judges would increase from 11 to
13, with one designated from each judicial circuit.43 The Chief Justice would be directed to
designate to the FISC the district court judge proposed by the chief judge of the circuit from
which a vacancy arises. If the Chief Justice does not designate the first proposed district court
judge, the chief judge of the circuit court would propose two other district court judges, one of
whom the Chief Justice must designate.44 For the FISA Court of Review, S. 1460 would require
that at least five associate justices of the Supreme Court concur in the Chief Justice’s designation.
Although chief judges of the circuit courts and associates justices of the Supreme Court would
have a role in the designation process, the Chief Justice would still be charged with the final act
of designating a judge to the FISA courts under this proposal.45
41 See, e.g., In re Kevork, 634 F. Supp. at 1014 (observing that “[f]ederal judges often serve on brief temporary
assignments to fulfill the responsibilities of the Judicial Branch, and there is substantial precedent for specialized courts
such as the FISC”); Megahey, 553 F. Supp. at 1197 (addressing an Article III challenge to the FISC by noting that
“FISC judges do not differ from other federal judges who sit from time to time when the need arises on courts other
than that to which they are appointed”); see also United States v. Falvey, 540 F. Supp. 1306, 1313 n.16 (E.D.N.Y.
1982).
42 The FISA Judge Selection Reform Act, S. 1460, 113th Cong. (1st Sess. 2013).
43 To implement the changes, the Chief Justice would designate the two new judges for the FISC: one district court
judge from the District of Columbia circuit and one district court judge from the Federal circuit.
44 Requiring the Chief Justice to appoint the individual recommended by the relevant chief judge of a circuit court
could arguably raise constitutional concerns similar to those that are potentially implicated when Congress requires the
President to appoint an individual from a list provided by congressional leadership. Although no court has squarely
addressed the issue, jurisprudence suggests that requiring the President to make an appointment in this manner could be
viewed by the courts as an enhancement of congressional power and possibly an invalid effort by Congress to involve
itself in the process of selecting presidential appointees. See, e.g., Bowsher v. Synar, 478 U.S. 714 (1986); Wash.
Airports Auth. v. Noise Abatement Citizens, 501 U.S. 252 (1991). It is unclear if this constitutional concern would
extend to a measure that would similarly constrain the Chief Justice’s selection authority, given that Congress would
not be involved in the selection process of FISA judges and the chief judge making the recommendation has been
appointed separately by the President with the advice and consent of the Senate.
45 However, others have opined that the chief judges of the circuit courts or the associate justices of Supreme Court
should have the authority to directly designate a judge to the surveillance court. See Editorial, More Independence for
the FISA Court, NY TIMES, July 29, 2013, at A16 (“One idea worth considering ... is for each of the chief judges of the
federal appeals courts to select one judge for the surveillance court. ... A further step might be to require the chief
judges’ choices to be submitted for approval to a board consisting of members of Congress with experience in
intelligence matters and experts with experience in protecting civil liberties.”). See also Liberty and Security in a
Changing World: Report and Recommendations of the President’s Group on Intelligence and Communications
Technologies, at 207-08 (December 12, 2013), available at http://www.whitehouse.gov/sites/default/files/docs/2013-
12-12_rg_final_report.pdf.
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With respect to authorizing others within the judicial branch to designate the FISA judges, the
limited judicial precedent available would appear to indicate that such an arrangement could pass
constitutional muster. Turning to the decision in McDowell, discussed above, the Court suggested
that it is “absolutely to the control of Congress” how and where a judge may exercise
jurisdiction.46 The McDowell Court further declared: “the power of Congress to provide that one
District Judge may temporarily discharge the duties of that office in another district cannot be
doubted.”47 This principle seems premised upon Congress’s power to establish the courts and the
absence of a constitutional provision that restricts the authority of a “District Judge to any
particular territorial limit.”48 Based on these declarations, a reviewing court may conclude that
nothing expressly precludes Congress from vesting chief judges with broad authority to designate
a judge from within their circuits to serve on the FISA courts. However, the McDowell holding
was based on an 1871 statute49 that seems to be a precursor to the modern-day statutes that limit a
chief judge’s designation authority.50 Given that Congress has consistently chosen to regulate
chief judges in this manner, it is conceivable that a reviewing court could view McDowell under a
narrow lens and find insufficient support for providing chief judges with broader designation
authority.51
Other proposals would shift authority to designate FISA court judges to the President. For
example, the Presidential Appointment of FISA Court Judges Act (H.R. 2761) would authorize
the President, by and with the advice and consent of the Senate, to “designate” judges for both the
FISC and FISA Court of Review.52 This type of proposal could be viewed as the equivalent of
requiring, and constituting, a second constitutional appointment,53 notwithstanding the use of the
46 McDowell, 159 U.S. at 598-99.
47 Id. at 598.
48 Id.
49 Rev. Stat. §596; 16 Stat. 494 (1871) (“It shall be the duty of every Circuit Judge, whenever in his judgment the
public interest so requires, to designate and appoint, in the manner and with the powers provided in section 591, the
District Judge of any judicial district within his circuit to hold a District or Circuit Court in the place or aid of any other
District Judge within the same Circuit.”).
50 E.g., 28 U.S.C. §§291(b), 292(a)-(b), 294(c).
51 See also supra note 21, at 12-13. Addressing proposals to alter the selection of FISA judges, the report from the
judiciary stated:
[P]roposals to disperse the selection authority among the associate justices of the Supreme Court or
chief judges of the federal circuits ignore the Chief Justice’s unique role in the Judicial Branch. The
Chief Justice is the President of the Judicial Conference of the United States, which includes the
responsibility to assign federal judges across the country to the various Conference committees and
other tasks, including service on special courts such as the Judicial Panel on Multidistrict
Litigation. The Chief Justice is therefore uniquely positioned, with the assistance of the Director of
the Administrative Office of the United States Courts, to review the federal judiciary and select
qualified judges for additional work on the FISC or the Court of the Review.
See generally James E. Pfander, The Chief Justice, The Appointment of Inferior Officers, and the “Court of Law
Requirement, 107 NW. U. L. REV. 1125, 1158 (2013) (discussing shift to Chief Justice based designations).
52 Presidential Appointment of FISA Court Judges Act, H.R. 2761, 113th Cong. (1st Sess. 2013). As with the current
process, judges designated for the FISC would be chosen from existing district court judges and judges for the FISA
Court of Review would be chosen from existing district court and circuit court judges. They would complete their
terms pursuant to current law—that is, one term of seven years.
53 Notably, there are two significant examples of positions where the statute provides for “presidential designation with
the advice and consent of the Senate.” Neither of these positions has been challenged on constitutional grounds due to
this statutory language, and individuals nominated to these positions have undergone the traditional appointment and
confirmation process. See 12 U.S.C. §242 (of the members appointed to Board of Governors for the Federal Reserve
System, the Chairman and Vice Chairmen are to be “designated” by the President with Senate confirmation); see also
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Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
term “designate” rather than “appoint.” Such an arrangement would abide by the strictures of the
Appointments Clause. 54 However, a separate constitutional appointment could call into question
the FISA courts’ status as Article III courts. Whereas judges appointed to Article III courts must
have life tenure,55 FISA judges are appointed to seven-year terms. Based on available precedent,56
however, it would appear that a reviewing court could reasonably construe that life tenure
protects a judge’s overall position on the federal judiciary and not the particular court to which he
is appointed.57 Just as courts have found that judges designated to serve on other special judicial
panels for a finite period do not “lose their Article III status,”58 so too a reviewing court may
determine that a federal judge, first appointed to a district or circuit court, does not lose his
overall Article III status or its accompanying protections if separately appointed to serve on the
FISA courts for a fixed term.59
In contrast, a proposal that would vest authority in the President alone to select an existing federal
judge to serve on the FISA courts,60 could arguably raise separation-of-powers concerns on
grounds that the exercise of such authority would constitute executive encroachment upon the
province of the judiciary that could undermine judicial independence.61 However, the Court in
(...continued)
12 U.S.C. §1812 (regarding “designation” of Chair and Vice Chairperson of the Board of Directors of the Federal
Deposit Insurance Corporation).
54 Alternatively, a court may view a presidential “designation” as legally distinct from an “appointment,” just as the
Court in Weiss determined that Congress did not intend a second appointment when it used the terms “detail” and
“assign” rather than “appointment” in the statute. If a designation is treated as legally distinct and the Senate alone
approves of the President’s judicial designee, this may be viewed as a legislative act because it alters the “legal rights,
duties, and relations of persons ... all outside the Legislative Branch.” The Supreme Court has held that such acts must
satisfy the bicameralism and presentment requirements of the Constitution. I.N.S. v. Chadha, 462 U.S. 919, 958 (1983).
However, the concerns expressed in Chadha may not be applicable if a court were to consider the proposed designation
the equivalent of a constitutional appointment, or a de minimis intrusion of separation of powers.
55 U.S. Const. art. III, §1. See Stern v. Marshall, 131 S.Ct. 2594 (2011) (holding that bankruptcy court was not
established under Article III of the Constitution because its judges are not subject to the constitutional assurances of
independence and declaring “Article III of the Constitution provides that the judicial power of the United States may be
vested only in courts whose judges enjoy the protections set forth in that Article.” Id. at 2620).
56 See Glidden Co. v. Zdanok, 370 U.S. 530, 540-41 (1962) (“[T]he constitutional quality of tenure and compensation
extended [to judges] at the time of their confirmation must be deemed to have depended upon the constitutional status
of the courts to which they were primarily appointed). See also Steven G. Calabresi & James Lindgren, Term Limits for
the Supreme Court: Life Tenure Reconsidered, 29 HARV. J.L. & PUB. POL’Y 769, 864 (2006).
57 But see Calabresi & Lindgren, supra note 56, at 865 (noting that another plausible interpretation of Article III is that
it “requires life tenure to be guaranteed to Supreme Court Justices, as well as to lower federal judges, in distinct
capacities”).
58 In re Kevork, 634 F. Supp. at 1014 (“The defendants’ contentions that because of their limited term on the FISA
court, these judges lose their Article III status, has no merit.”); Megahey, 553 F. Supp. at 1197.
59 For example, individuals who are recess appointed to Article III courts are still considered to be legitimate Article III
judges even though the Recess Appointments Clause, U.S. Const. art. II, §2, cl. 3, restricts their service until the end of
the Senate’s next session. See, e.g., United States v. Woodley, 751 F.2d 1008, 1014 (9th Cir. 1984) (en banc) (“A recess
appointee lacks life tenure and is not protected from salary diminution. As a result, such an appointee is in theory
subject to greater political pressure than a judge whose nomination has been confirmed. ... We must therefore view the
recess appointee not as a danger to the independence of the judiciary, but as the extraordinary exception to the
prescriptions of [A]article III.”).
60 Under the Appointments Clause, Congress “may by Law vest the Appointment of such inferior Officers, as they
think proper, in the President alone.... ” U.S. Const., art. II, §2, cl. 2.
61 N. Pipeline Const. Co., 458 U.S. at 58 (“The Federal Judiciary was therefore designed by the Framers to stand
independent of the Executive and Legislature—to maintain the checks and balances of the constitutional structure, and
also to guarantee that the process of adjudication itself remained impartial.”).
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Mistretta v. United States concluded that the separation-of-powers doctrine does not preclude the
President from appointing judges to serve on the U.S. Sentencing Commission, an independent
agency within the judicial branch performing nonadjudicatory functions.62 Even though the
President has limited power to remove a judge from the commission,63 the Court concluded that
the President “has no power to affect the tenure or compensation of Article III judges ... [nor does
he have] power to coerce the judges in the exercise of their judicial duties.”64 Similarly, assuming
the President may remove a federal judge from serving on the FISA courts before the end of a
seven-year term,65 the judge would continue to be an Article III judge serving on the district or
circuit court to which she was initially appointed.66 On the other hand, the judges in Mistretta
were acting in an extrajudicial capacity and not exercising judicial power,67 whereas FISA judges
are exercising judicial powers on an Article III court. It is therefore conceivable that a court may
conclude that selection of FISA judges by the President alone raises separation-of-powers
concerns, if it determines that the President’s power to remove judges from the FISA courts could
have a coercive influence and compromise the impartiality of judges as they serve on the FISA
courts.
Lastly, there are proposals that would vest designation authority with congressional leadership.
The FISA Court Accountability Act (H.R. 2586), for example, would allow both the Chief Justice
and congressional leadership to make designations to the FISC and FISA Court of Review.68
Generally, these types of proposals would appear to be potentially problematic under the
Appointments Clause and general separation-of-powers principles. While Congress has authority
to select individuals to serve on entities that aid Congress in its legislative function,69 Congress
has no authority under the Appointments Clause to directly select appointees that exercise
significant authority pursuant to the laws of the United States.70 Secondly, congressional
designations may raise legal concerns under the principles announced in I.N.S. v. Chadha.71 The
Court in Chadha declared that that legislative acts, which have the “purpose and effect of altering
the legal rights, duties, and relations of persons” outside the Legislative Branch, must satisfy the
bicameralism and presentment requirements of the Constitution.72 Accordingly, congressional
62 Mistretta v. United States, 488 U.S. 361, 371-412 (1989).
63 The U.S. Sentencing Commission consists of seven voting members. At least three members are to be federal judges,
who are appointed by the President with the advice and consent of the Senate. The President may remove members of
the commission only for neglect of duty, malfeasance in office, or other good cause. 28 U.S.C. §991(a).
64 Mistretta, 488 U.S. at 411.
65 See Myers v United States, 272 U.S. 52, 122 (“The power of removal is incident to the power of appointment ...”).
66 Mistretta, 488 U.S. at 360.
67 Id. at 361.
68 With respect to the FISC, H.R. 2586 provides that the Chief Justice would designate three judges, and the Speaker of
the House of Representatives, the Minority Leader of the House of Representatives, the Majority Leader of the Senate,
and the Minority Leader of the Senate would each designate two judges. With respect to the FISA Court of Review,
H.R. 2586 would permit the Chief Justice, the Speaker of the House, and the Majority Leader of the Senate to each
designate a judge. If the Majority Leader of the Senate is of the same party as the Speaker of the House, the designation
would fall to the Minority Leader of the Senate.
69 See, e.g., Congressional Award Board (2 U.S.C. §803); Dwight D. Eisenhower Memorial Commission (16 U.S.C.
§431 note); Advisory Committee on the Records of Congress (44 U.S.C. §270).
70 Buckley, 424 U.S. 113-41. The Court held that Congress could not make appointments of individuals who exercise
substantial power beyond those “Congress might delegate to one of its own committees” without running afoul of the
strictures of the Appointments Clause, which requires those who qualify as “Officers of the United States” to be
appointed in a manner prescribed by the Clause. Id. at 137-39.
71 I.N.S. v. Chadha, 462 U.S. 919 (1983).
72 Id. at 958.
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Reform of the Foreign Intelligence Surveillance Court (FISC): Selection of Judges
designation made to the judiciary by the leadership of each house without the approval of the
other, or the President, would seem to implicate the principles established in Chadha.
Author Contact Information
Vivian S. Chu
Legislative Attorney
vchu@crs.loc.gov, 7-4576
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